Scalia, Antonin - District of Columbia v Heller

07/11/2008

No. 07-290, June 26, 2008

This is a supreme court decision that has been summarized far better elsewhere, I'm sure. However, it does serve to go over the main arguments in broad strokes. Author delivers the opinion of the court. At issue is a hand-gun ban in DC which, in the court's opinion, violates the 2nd Amendment:

"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Author separates the 'prefatory clause' from the 'operative clause', focusing first on 'the right of the people to keep and bear Arms'. Author argues that this is an individual right, one extended not just to members of a militia or a sub-set of the population, but to all individuals in the polity. Author engages in a long discussion of the usage and origin of the words 'keep', 'bear' and 'arms'. Author then posits that the right to own and carry weapons was for the purpose of 'confrontation' and self-defense. Author relies on other laws drafted at the time as evidence for the intent of the framers of the Amendment. Author then discusses the 'prefatory clause', which is the 'Well-regulated Militia' portion. Author talks about how the framers were worried that tyrants would disarm the people and thereby take their ability to resist away. Seen in this context, author claims that the reading of the 'operative clause' is sensible.

Author takes some time to rebut the dissent's interpretations, then discusses various contexts after the amendment was ratified where the speech supports the reading of the right as a right to bear arms in self-defense. Crucial to the rejection of Stevens' discussion of the various drafts the amendment went through is the author's claim that the 2nd Amendment codified an existing, common-law right, not fashion a new one.

Author discusses the past cases that involved 2nd Amendment protection. Author claims that in US v Miller, it was the type of weapon involved that didn't get 2nd Amendment protection, not that the individuals were using a weapon for non-military purposes. Author defends against the claim that small-arms weapons for militia use today wouldn't work against tanks and bombers-- author counters that 'the fact that modern developments have limited the degree of fit between the prefatory clause and protected right cannot change our interpretation of the right'

Finally, author looks at the current case and declares that handguns are popular as self-defense weapons, that trigger locks wouldn't allow for quick enough defense, and that both parts of the law are unconstitutional.

Stevens, Jon delivered the first of two dissenting opinions

Stevens agrees that the 2nd Amendment is a right of the people, but argues that does nothing to establish the scope of the right. Stevens argues that 'the people' is referring to a right of individuals who are members of a group, similarly to the right to peaceably assemble. In analysis of the text he links 'keep and bear arms' as an expression used in military contexts. Stevens claims that the most natural reading of the Amendment is that it protects the right to use and posess arms in conjunction with service in a well-regulated militia, which was also an existing right too.

Stevens discusses the history of the drafting of the 2nd Amendment and highlights how the drafts did not involve self-defense uses of arms, even though proposed drafts did so. Stevens reinterprets the post-enactment discussions that Scalia uses, notably Joseph Story's views.

Stevens then reviews the various cases that have previously dealt with the 2nd Amendment (much like Scalia), but interprets them to turn on, e.g. in the Miller case-- the non-military use of weapons, etc.

Breyer, Stephen delivers the second dissenting opinion

Breyer assumes (for the sake of argument) that the 2nd Amendment grants a personal right for self-defense. He then says that this right is not unrestricted and needs to be subject to some sort of constitutional standard, like a 'rational basis' or 'rational relationship'. In this case, Breyer advocates an 'interest balancing' approach.

Breyer discusses the briefs filed that the laws written have not reduced crime. He reviews the different evidence offered and concludes that the evidence is indecisive. Thus, the district is trying to reduce crime using a possible method (there is evidence on both sides), and Breyer sees this as a legitimate balance of interests.